Ruling en banc, the US Court of Appeals for the Ninth Circuit reinstated a 2016 jury verdict, finding that the rock band Led Zeppelin and the opening notes of its hit song “Stairway to Heaven” did not infringe the 1967 song “Taurus” by the band Spirit. Michael Skidmore v. Led Zeppelin et al., Case No. 16-56057 (9th Cir., March 9, 2020) (en banc) (McKeown, J.) (Bea and Ikuta, JJ., dissenting).
The en banc decision addressed a “litany of copyright issues”—the most critical being the interplay between the 1909 and 1976 Copyright Acts and the Court’s reversal of its own precedent in rejecting a doctrine occasionally referred to as the “inverse ratio rule”—when it concluded that, regardless of a copyrighted work’s fame, all plaintiffs must satisfy the same standard of proof in showing that an allegedly infringing work is substantially similar to the copyrighted work.
In 2014, 43 years after the release of Zeppelin’s “Stairway to Heaven,” Michael Skidmore, the co-trustee of estate of Randy Wolfe who was a member of the band Spirit and the author of the 1967 Spirit song “Taurus,” brought a suit for copyright infringement alleging substantial similarity between the opening notes of “Stairway to Heaven” and Spirit’s instrumental song “Taurus.” At trial, the jury returned a verdict for Led Zeppelin, finding that the two songs were not substantially similar under the “extrinsic test,” which objectively compares the protected aspects of a copyrighted work. Skidmore appealed.
On appeal, the Ninth Circuit panel vacated the district court’s judgment in part and remanded for a new trial. The Ninth Circuit granted rehearing en banc to address the scope of Wolfe’s copyright in “Taurus,” and how to determine whether unlawful copying was present in Zeppelin’s hit song.
Scope of Protection – 1909 vs. 1976
The Ninth Circuit addressed the scope of protection between the 1909 and 1976 Copyright Act. “Taurus” was registered with the US Copyright Office as an unpublished musical composition in 1967, which made it subject to the Copyright Act of 1909. As such, the sweeping reforms of the Copyright Act of 1976, including the protection of sound recordings, were deemed inapplicable. Therefore, the Court agreed that the “one page deposit copy” of the “Taurus” sheet music that was lodged with the Copyright Office “defined the scope of the copyright at issue.” Under that framework, to assess the substantial similarities between the songs, the Court concluded that it was not in error for the district court to limit the similarity analysis to a single sheet music and to reject Skidmore’s argument to play sound recordings of “Taurus.”
Substantial Similarity – No More Inverse Ratio Rule
Moving to the elements of copyright infringement, the Ninth Circuit explained that Skidmore had to show (1) a valid ownership of the copyright in “Taurus” (which was not in dispute on appeal), and (2) that Led Zeppelin copied protected aspects of the work. Focusing on the second prong of the infringement analysis required the Court to examine the “crucial question” of substantial similarity and the Court’s self-described checkered application of the so-called “inverse ratio rule,” which has been otherwise rejected by a majority of the circuits.
For nearly 40 years, the Ninth Circuit had applied the inverse ratio rule, which requires a lower standard of proof of substantial similarity between two works when a plaintiff is able to show a defendant’s high degree of access to the allegedly infringed work. Yet, the Court admitted that the rule had been applied inconsistently and to different parts of the infringement analysis over the years. The Court overruled its own precedent, noting that the inverse ratio rule creates an unfair advantage for popular works with high accessibility by potentially lowering the standard of proof for similarity to almost zero. Therefore, the Court held that access does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work. While the Court reinforced that access to copyrighted works might still lend itself to circumstantial evidence of actual copying, it clarified that access alone “in no way can prove substantial similarity.”
Having established the scope of copyright at issue and after rejecting the inverse ratio rule, the Ninth Circuit confirmed that the district court’s various jury instructions on issues of originality, protectable elements such as music selection and arrangement, and other evidentiary matters were not in error. In doing so, the Court affirmed the judgment that Led Zeppelin’s “Stairway to Heaven” did not infringe Spirit’s “Taurus.”
Judges Bea and Ikuta dissented in part, arguing that instructions given to the jury on issues of musical selection and arrangement were misleading and thereby impacted the jury’s consideration of plaintiff’s central theory of the case, being the substantial similarity of “iconic notes” in Led Zeppelin’s work when compared to “Taurus.”
Practice Note: It has been noted that the Ninth Circuit’s Led Zeppelin decision is in stark contrast from its controversial ruling in the “Blurred Lines” case just two years prior, where artists Pharrell Williams and Robin Thicke were found to have infringed the copyright to Marvin Gaye’s iconic song “Got to Give It Up.” Many experts have labeled this latest decision a win for copyright law and the music industry generally, since it was feared that a ruling against Led Zeppelin would further usher in a harmful overprotection of copyrights.